Judge Delays BLM’s New Fracking Rules

U.S. District Court Judge Scott Skavdahl on Tuesday presided over eight hours of hearings about whether to block controversial new U.S. Bureau of Land Management regulations about hydraulic fracturing.

And a half-dozen hours before the rules were to go into effect Wednesday, Skavdahl eyed a proposed preliminary injunction by their opponents in a way that would have made the British punk band The Clash proud.

"On the 12th hour, I'm faced with the question of do I stay or do I go?"

Skavdahl stayed.

Specifically, he stayed, delayed in other words, for at least a month the implementation of new regulations the Department of Interior's BLM and environmental groups regarded as necessary to oversee hydraulic fracking used in drilling for oil and gas on federal lands

But Wyoming, Colorado, Utah and North Dakota, and the Independent Petroleum Association of America and the Western Energy Alliance had petitioned the court to impose a preliminary injunction to block the rules. The Wyoming County Commissioners Association and the Ute Indian Tribe also joined these petitioners.

They said the BLM was overstepping its regulatory authority by wanting to duplicate the states' own work in regulating fracking, which in turn would lead to more bureaucracy and could cut mineral tax revenues.

The attorneys for both sides presented their cases well, Skavdahl said.

But this serious case deals with the cost of compliance with the regulations, impacts on states including tax revenues and government operations, and trade secrets of the materials used in fracking, he said.

To make an informed decision, Skavdahl said he legally needed to review the BLM's administrative record. That record includes the research, comments, emails among agency staff, and documents used in crafting the regulations.

He wasn't declaring any winners or losers, he said. "Given what I'm obligated to do, I'm not going to write anyone a blank check."

His action is a stay on the implementation of the rules that could still go into effect if he rules in favor of the BLM, he said. "It's not a granting of a preliminary injunction."

However, he made a statement that representatives of the states and industry groups considered a hopeful sign. "The court would note that there is a credible threat of irreparable harm."

"Irreparable harm" refers to one of the four criteria that must be met for a petitioner in a legal case to win a preliminary injunction.

Petitioners must prove their case likely would win if it went to trial, that they will suffer irreparable harm if the court doesn't act in their favor, that they will be harmed more than the other side without the injunction, and that a preliminary injunction is in the public interest.

Skavdahl outlined what would happen next.

The BLM must submit its administrative record to him no later than July 22. That will start a seven-day clock for him and the attorneys to do their own research.

Attorneys for both sides will be able to file documents, but Skavdahl will not conduct any further oral arguments.

He then will make a ruling on whether the states and industry groups should get their preliminary injunction, or whether the BLM rules can go into effect.

Kathleen Sgamma, vice president government and public affairs of the Denver-based Western Energy Alliance, said the motion for the preliminary injunction is still alive, complimented Skavdahl's handling of the case, and took a dig at the BLM.

"It gives us more time to comply with a confused rule that even the BLM can't articulate," Sgamma said.